Third Ward Council Member Vacancy - Initiate Copyrighted
September 3, 2019
City of Dubuque Action Items # 10.
ITEM TITLE: Third Ward Council Member Vacancy
SUMMARY: CityAttorneysubmitting information related to filling the
Council Member vacancy for the Third Ward.
RESOLUTION I ntent to fill a vacancy in the Office of Third
Ward City Council Member by appointment until a new
Third Ward Council Members is elected and takes the Oath
of Office following the November 2019 special election
SUGGESTED DISPOSITION: Suggested Disposition: Receive and File; Council
ATTACHMENTS:
Description Type
Staff Memo Staff Memo
Resolution Resolutions
Public Notice Supporting Documentation
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CRENNA M . BRUMWELL , ESQ.
CITY ATTORNEY
TO: MAYOR ROY D. BUOL AND MEMBERS OF THE CITY COUNCIL
DATE: AUGUST 2'I, 2019
RE: MIDTERM VACANCY ON CITY COUNCIL
With the resignation of Council Member Kate Larson, I was asked to provide a summary
of the state law requirements and options for filling the vacancy.
A vacancy occurs upon any of the following:
• Officeholder's death
• On the date the officeholder no longer lives in the city or ward in which the
officeholder was elected
• Officeholder submits a resignation, if the resignation is effective immediately
• On a specific date, if the resignation of the officeholder is effective at a future date
• Removal of an officeholder from office
A vacancy cannot be filled until it actually occurs. For example, if Councilmember Larson
announces that her resignation is effective December 31, 2019 then there isn't a vacancy
until January 1, 2020.
The vacancy which will be created by the resignation of Councilmember Kate Larson is
considered a mid-term vacancy. Mid-term vacancies can be filled by:
1) Appointment by the City Council, or
2) Special election
These options are outlined in lowa Code 371.13(2) (emphasis added):
372.13 The council.
2. A vacancy in an elective city office during a term of office shall be filled, at the
council's option, by one of the two following procedures:
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE,300 MAIN STREET DUBUQUE, IA 52001-6944
TE�EPHONE (563) 589-4381 /Fwc (563)583-1040/Ennni� cbrumwel@cityofdubuque.org
a. (1) By appointment by the remaining members of the council,
except that if the remaining members do not constitute a quorum of
the full membership, paragraph "b" shall be followed. The appointment
shall be made within sixty days after the vacancy occurs and shall be for
the period until the next regular city election described in section 376.1 ,
unless there is an intervening special election for that city, in which event
the election for the office shall be placed on the ballot at such special
election. If the council fails to make an appointment within sixty days as
required by this subsection, the city clerk shall give notice of the vacancy to
the county commissioner and the county commissioner shall call a special
election to fill the vacancy at the earliest practicable date but no fewer than
thirty-two days after the notice is received by the county commissioner.
(2) If the council chooses to proceed under this paragraph, it shall publish
notice in the manner prescribed by section 362.3, stating that the council
intends to fill the vacancy by appointment but that the electors of the city or
ward, as the case may be, have the right to file a petition requiring that the
vacancy be filled by a special election. The council may publish notice in
advance if an elected official submits a resignation to take effect at a future
date. The council may make an appointment to fill the vacancy after the
notice is published or after the vacancy occurs, whichever is later. However,
if within fourteen days after publication of the notice or within fourteen days
after the appointment is made, there is filed with the city clerk a petition
which requests a special election to fill the vacancy, an appointment to fill
the vacancy is temporary and the council shall call a special election to fill
the vacancy permanently, under paragraph "b". The number of signatures
of eligible electors of a city for a valid petition shall be determined as follows:
(a) For a city with a population of ten thousand or less, at least two
hundred signatures or at least the number of signatures equal to
fifteen percent of the voters who voted for candidates for the office
at the preceding regular election at which the office was on the ballot,
whichever number is fewer.
(b) For a city with a population of more than ten thousand but not
more than fifty thousand, at least one thousand signatures or at least
the number of signatures equal to fifteen percent of the voters who
voted for candidates for the office at the preceding regular election
at which the office was on the ballot, whichever number is fewer.
(c) For a city with a population of more than fifty thousand, at least
two thousand signatures or at least the number of signatures equal
to ten percent of the voters who voted for candidates for the office at
the preceding regular election at which the office was on the ballot,
whichever number is fewer.
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(d) The minimum number of signatures for a valid petition pursuant
to subparagraph divisions (a) through (c) shall not be fewer than ten.
In determining the minimum number of signatures required, if at the
last preceding election more than one position was to be filled for the
office in which the vacancy exists, the number of voters who voted
for candidates for the office shall be determined by dividing the total
number of votes cast for the office by the number of seats to be filled.
b. (1) Bv a special election held to fill the office for the remaininq
balance of the unexpired term. If the council opts for a special election or
a valid petition is filed under paragraph "a", the special election may be held
concurrently with any pending election as provided by section 69.12 if by so
doing the vacancy will be filled not more than ninety days after it occurs.
Otherwise, a special election to fill the office shall be called by the council
at the earliest practicable date. The council shall give the county
commissioner at least thirty-two days' written notice of the date chosen for
the special election. The council of a city where a primary election may be
required shall give the county commissioner at least sixty days' written
notice of the date chosen for the special election. A special election held
under this subsection is subject to sections 376.4 through 376.11 , but the
dates for actions in relation to the special election shall be calculated with
regard to the date for which the special election is called. However, a
nomination petition must be filed not less than twenty-five days before the
date of the special election and, where a primary election may be required,
a nomination petition must be filed not less than fifty-three days before the
date of the special election.
(2) If there are concurrent vacancies on the council and the remaining
council members do not constitute a quorum of the full membership, a
special election shall be called by the county commissioner at the earliest
practicable date. The remaining council members shall give notice to the
county commissioner of the absence of a quorum. If there are no remaining
council members, the city clerk shall give notice to the county commissioner
of the absence of a council. If the office of city clerk is vacant, the city
attorney shall give notice to the county commissioner of the absence of a
clerk and a council. Notice of the need for a special election shall be given
under this paragraph by the end of the following business day.
The City Council can publish notice of its intention to appoint or call for a special election
before the vacancy actually occurs, but an appointment or special election cannot occur
until after the vacancy occurs.
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Appointment
Appointment requires certain publication requirements be met. The City Council is
required to publish notice the body intends to appoint an individual to complete the council
term at least four (4) but no more than twenty (20) days before the appointment will occur.
The published notice must also include certain language notifying citizens of their right to
request a special election by filing a petition. The notice published must be in a
newspaper of general circulation.
If the City Council opts to appoint someone to fill the mid-term vacancy the appointment
must be made within sixty (60) days after the vacancy occurs. If the City Council doesn't
appoint someone to the vacant seat on the Council within sixty (60) days, the City Clerk
must notify the County Auditor. The County Auditor is required to call for a special election
as soon as possible, but not sooner than sixty (60) days after the notice from the City
Clerk as the City of Dubuque has a primary election provision in the Code of Ordinances.
Any person the Council will consider for appointment is required to meet the same
qualifications as a candidate seeking to run for the office. This means in the case of the
vacancv created bv Kate Larson's resianation, the individual appointed must be a resident
of Ward 3. lowa Code §39.27
Note: submission of a petition with 163 signatures from residents in Ward 3 per the lowa
Code requirements would trigger holding a special election to fill the vacancy.
Special Election
I was asked whether a mid-term vacancy could be placed on the regular election ballot to
be held November 5, 2019.
Yes, but only if there is a vacancy as of Friday, August 23, 2019.
I spoke with the Deputy Commissioner of Elections, Jenny Hillary. Currently, there is no
vacancy and there would not be a vacancy until January 1 , 2020. For a special election
to appear on the regularly schedule election ballot on November 5, 2019, a resignation
would need to be submitted, in writing, effective Friday, August 23, 2019 for the City Clerk
to meet the deadline for getting a special election on the November 2019 ballot within the
state deadlines.
If there was a vacancy, effective Friday, August 23, 2019, the filing deadlines for a special
election appearing on the regular ballot are the same as those for the regularly scheduled
election. There is no mechanism within the elections law to extend the deadline for
candidates to meet the filing/signature requirements. Ward 3 residents interested in
appearing on the special election portion of the November ballot would have until August
29, 2019 to submit the necessary documents and signatures. According to the Dubuque
County Elections Office, it will take sixteen (16) signatures on a nomination petition for an
individual's name to appear on the special election portion of the November ballot for the
Ward 3 vacancy.
4
Technically, the November election would then be both a regular and special election.
The vacancy could appear on the regular ballot with the designation, "To Fill Vacancy."
If no candidates met the August 29, 2019 deadline to appear on a special election portion
of the November ballot, then the vacancy would be filled via write-in votes.
Teleqraph Herald Editorial
The Telegraph Herald Editorial suggested Councilperson Larson should resign and be
reappointed to allow citizens to vote for her replacement in November. This is a
possibility, but onlv if there is a vacancy as of Friday, August 23, 2019 AND the City
Council must still comply with the state law requirements to publish a notice the Council
will appoint to fill the vacancy through the end of the year. The Council would be required
to take applications from others interested in serving through the end of 2019 for Ward 3.
I think we need to decide whether to say the council would not be bound to appoint her.
For a resignation effective Friday, August 23, 2019 the Council could:
1) Appointment: Act on Monday, August 26, 2019, to choose the appointment option.
The notice would then be published and contain the required timeline for receipt of
applications. The Council could appoint for the vacancy at the next meeting after
the application deadline. This would likely mean there would only be six (6) council
members for at least a couple meetings. An appointment cannot be immediate.
2) Special election: Meet the deadline to call for a special election for the vacancy to
appear on the November 2019 ballot.
For a resignation effective December 31 , 2019, the Council has the following options:
1) Appointment: Publish the notice and accept applications in advance of December
31 , 2019. Unless a petition was submitted requiring a special election the Council
could make an appointment at the first meeting in January 2020 for an individual
to complete the remainder of Councilperson Larson's term or at any meeting within
sixty (60) days from January 1 , 2020.
2) Special election: Call for a special election which would be on March 3, 2020. The
Council would have only six (6) members in January and February 2020.
A resignation effective on any other date would need to be analyzed to provide available
options.
Ultimately, the choice as to a date of resignation is up to Councilperson Larson.
cc: Barry Lindahl, Senior Counsel
Kevin Firnstahl, City Clerk
Jenny Hillary, Dubuque County Deputy Commission of Elections
5
NEW SECTION, UPDATED AUGUST 29, 2019
With the resignation of Third Ward Council Member Kate Larson as of August 23, 2019
the vacancy in the Third Ward will automatically appear on the November 5, 2019 ballot
as a special election concurrent with the regular election.
The Council may choose to appoint someone to the vacancy to serve to November 5,
2019. If the Council opts to appoint a resolution is done and the notice is published in
accordance with lowa Code.
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Prepared by Crenna M. Brumwell 300 Main Street, Suite 330 Dubuque IA 52001 563 589-4381
Return to Crenna M. Brumwell 300 Main Street, Suite 330 Dubuque IA 52001.563 589-4381
RESOLUTION NO. 328-19
INTENT TO FILL A VACANCY IN THE OFFICE OF THIRD WARD CITY COUNCIL
MEMBER BY APPOINTMENT UNTIL A NEW THIR WARD CITY COUNCIL IS
ELECTED AND TAKES THE OATH OF OFFICE FOLLOWING THE NOVEMBER 2019
SPECIAL ELECTION
WHEREAS, there is a vacancy in the Office of City Council Member for the Third Ward;
and
WHEREAS, Iowa Code §372.13(2)(a) allows the vacancy to be filled by appointment
by the remaining members of the council for a period until the next pending election which
is November 5, 2019; and
WHEREAS, the council must publish notice in the manner prescribed by Iowa code
§362.3, stating that the council intends to fill the vacancy by appointment but that the
electors of the ward have the right to file a petition requiring that the vacancy be filled by
a special election; and
WHEREAS, the council has elected to fill the vacancy in the Office of City Council
Member for the Third Ward by appointment until the next pending election which is
November 5, 2019.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA, AS FOLLOWS:
1. The council hereby elects to fill the vacancy in the Office of City Council Member
for the Third Ward by appointment until the next pending election on November 5,
2019, following the publication of the required notice.
2. The City Clerk is directed to publish the attached notice in the manner prescribed
b.Iowa Code 8362.3
Passed, approved and adopted this 3rd day of September 2019.
Roy D. Buol, Mayor
Attest:
_,.�.�.
Kevi6 S. Firnstahl, City .Clerk
F:\Council\Resolutions\Resolutions_By Number\2019 Resolutions\328-19 Third Ward Appointment 8-28-19.docx
CITY OF DUBUQUE, IOWA
OFFICIAL NOTICE
NOTICE OF INENT TO FILL A VACANCY IN THE OFFICE OF
THIRD WARD CITY COUNCIL MEMBER BY APPOINTMENT
Pursuant to Resolution No. -19 notice is hereby given that the City Council
intends to fill the vacancy in the Office of City Council Member for the Third Ward by
appointment as provided by law. The appointment is for the period until the November
5, 2019 city/special election.
Electors of the Third Ward interested in being considered for appointment must submit a
Letter of Interest / Resume to the City Clerk's Office by 5:00 p.m. on Friday, September
13, 2019. The appointment will be made at the September 16, 2019 City Council
meeting.
The electors of the Third Ward have the right to file a petition requiring that the vacancy
be filled by a special election. If within fourteen days after publication of this notice or
within fourteen (14) days after the appointment is made, there is filed with the City Clerk
a petition with the required number of signatures which requests a special election to fill
a vacancy, the appointment to fill the vacancy is temporary and the City Council will call
a special election to fill the vacancy for the remaining balance of the unexpired term.
Dated this 5�h day of September 2019.
Kevin S. Firnstahl, CMC
City Clerk
1 t 9/5
STATE OF IOWA {SS:
DUBUQUE COUNTY
CERTIFICATION OF PUBLICATION
I, Suzanne Pike, a Billing Clerk for Woodward
Communications, Inc., an Iowa corporation, publisher
of the Telegraph Herald, a newspaper of general
circulation published in the City of Dubuque, County
of Dubuque and State of Iowa; hereby certify that the
attached notice was published in said newspaper on the
following dates:
September 05, 2019,
and for which the charge is $20.15
Subscribed to be Te me, a Notary Public in and for
Dubuque County, Iowa,
this /04. day of
l�
Notary Public in and Dub=y, County, Iowa.
AMY WAGNER
Commission Number 813362
My Commission Expires
October 22, 2021
CITY OF DUBUQUE,
IOWA
OFFICIAL NOTICE
NOTICE OF INTENT I,
TO FILL A VACANCY
IN THE OFFICE, OF
THIRD WARD CITY'
COUNCIL MEMBER BY
APPOINTMENT,
Pursuant to Resolu-
tion No. 328:19- notice
is hereby given that
the City Council in
tends to fill the vacan
cy in the Office of City
Council Member for the
Third Ward by appoint-
ment asj.provided' by
law.�, `Ifhe, a�ipointment
is for the period until
the'Nove"nrber 5,"2019,,
city/special election.
Electors of the Third
Ward interested in be-
ing ' c9nsidered
e-ing'considered for ap-
pointment must submit
a Letter of interest /
Resume to the City
Clerk's Office by
p.m. on Friday, Sep,
tember 13 2019. The
appointment will' be,.)
considered -'- at' the
September 16, 2019
City Council meeting.
The electors of the
Third Ward , have the
Tight to file'' a petition
requiring that the va- J
cancy be filled ;by a'
special - e egtion. If
within fourteen days ;;'
after publication of this
notice or, Within four-
teen (14) days "after the '1
appointment is made,'
there is filed; with the
City Clerk a petition 1
With the required num- 1
ber of signatures which 1
requests a special,elec-
tion to 011` a vacancy,
the appointment to fill
the vacancy Is tempo-
rary;and the CitfrCoup-
cil Will call . a special
election to fill the va-`
cancy for the remain-
ing balance of the
unexpired term:. '
Dated, this 5th day of
September 2019.
Kevin S. Firnstahl,
CMC; City Clerk
1t 9/5